This proposal stands in stark opposition to our public petition for the U.S. Trade Rep to stop backroom negotiations in international trade agreements.

Given the utter lack of transparency and absence of public input in almost all other trade agreements, we have no reason to believe that this new position would improve the broken balance in copyright or patent law. Rather, it is an effort to entrench "intellectual property" as a policy matter that should be decided in secret trade meetings that have so far been shrewd in deflecting all democratic oversight.

The bill, S.660, is not Senator Orrin Hatch's first attempt to put Big Content's interests on a pedestal in U.S. trade policy. In fact, it comes directly on the heels of a failed amendment to the much-debated Senate budget proposal approved just the week before.

It's disappointing but not surprising that such an attempt would come as a rider on a much larger bill and without public debate. After all, the position it would have created would have been dedicated to promoting copyright and patent policies that wouldn't pass muster in a setting with more transparency and accountability.

But as troubling as that failed amendment was, this proposal is even worse. The new Chief “Intellectual Property" Negotiator would have to be approved by the Senate Finance Committee — of which Senator Hatch himself is the Ranking Member — and would be required to "be a vigorous advocate on behalf of United States innovation and intellectual property interests." That is to say, this representative wouldn't be there to represent the public interest, or the average Americans who are paying his or her salary.

Worse still, this proposal comes at the precise moment that the legacy content industry's trade agenda has shown itself to be most at odds with the public interest. In particular, opponents of an effective and permanent fix to the Digital Millenium Copyright Act's ban on phone-unlocking have cited language in recent trade agreements as a reason why any such legislation could be impossible — even though it's been described as simple "common sense" by the White House. Regardless of the truth of those opponents' claims, they slow the pace of change, even for extremely popular proposals. In other words, industry interests at the international level are trying to tie the hands of democratically elected legislators and dictate which laws are unacceptable.

This goes beyond even policy laundering, where otherwise indefensible copyright policies are given the patina of legitimacy by being accepted first in an international forum. Here, the copyright lobby is claiming to be able to set profoundly undemocratic limits on the kinds of laws that domestic legislators can pass. It's essential that the public pushes back on that notion — and it's certainly not acceptable to be advancing it further with the creation of a new Ambassador required to listen to an industry group and not the public.

As Upton Sinclair once famously wrote: "It is difficult to get a man to understand something, when his salary depends on his not understanding it." On this point, Hatch's proposal is clear: question the assumption that "vigorous" copyright and patent enforcement may be at odds with innovation, or that the public interest should supercede industry interest, and you're out of a job. Appointing a representative for the industries dedicated to "strong" copyright and patent laws all but guarantees that U.S. trade policy will reflect the industry-friendly regulations that representative is paid to promote, regardless of whether they are in the public interest.

EFF and others have repeatedly called for Congress to not debate copyright in a "reality-free zone," and instead to create evidence-based policies that advance the constitutional purpose of promoting the progress of science and the useful arts. Senator Hatch's proposal represents a tremendous step away from that goal.

And while we hope the Senate rejects Senator Hatch's dangerous proposal, we want to go one step further. In that spirit, we're calling for the next appointed U.S. Trade Rep to commit to stopping the secret copyright agenda, and to purse policies of real transparency. That transparency would provide sorely needed accountability, and give U.S. Representatives a powerful incentive to not push for policies that go against the general public interest.

We've put together a global petition to tell the next U.S. Trade Rep that the public demands that level of transparency. Please sign, and lend your voice today to make sure that we're heard loud and clear.

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